DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                    DECISIONAL DOCUMENT

 ex-STS3, USN
Docket No. ND99-00839

Applicant’s Request

The application for discharge review, received 990601, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before the Board in the Washington National Capital Region.  The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 000914.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, but no impropriety in the characterization of the applicant’s service.  The Board’s vote was 3 to 2 that the character of the discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Previous to my service-related injury on 23 February, 1991, my service and evaluations were excellent. (See document 1, which includes all performance evaluations from end of training through the date of injury)

2. The Navy's mishandling of my injury and resulting disabilities caused me serious financial problems which required me to seek help from the Navy Relief Society in order to survive.  (See document 2, Report of Medical Board, and document 3, Financial Assistance Authorization and Receipt; See also appendix paragraph 2)

3.  The Navy's mishandling of my injury and resulting disabilities made it impossible for me to complete the check-in process incident to my transfer from TMU TI to Treasure Island Naval Station for limited duty.  (See appendix paragraph 3)

4.  My assignment to the 1st LT/Self-Help Division required numerous activities which violated my limited medical duty restrictions on physical activity (see document #4, Medical Surveillance Questionnaire.)

5.  My unauthorized absence, which lasted less than 60 days, resulted from nearly four months of depression and physical pain which in turn resulted from the Navy's unwillingness to comply with the restrictions placed on my physical activity by its own medical board, and their inability to keep my pay and allowances current during transfer procedures.

6.  The recommendation for a Special Court-Martial for an unauthorized absence of less than 60 days was utterly disproportionate to the offense, especially in light of the underlying circumstances and my previous excellent evaluations and clean disciplinary record.

7.  I requested a discharge in lieu of court-martial as a result of serious financial pressures, and in the sincere and reasonable belief that I stood no chance of acquittal and very little chance of leniency in sentencing, and that the court-martial would end my military career in any case.

8.  Since my discharge resulted ultimately from my medical condition, I should have been honorably discharged for medical reasons, rather than subjected to the Navy's inadequate attempts to return me to unlimited duty.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of appendix
Copies of enlisted performance evaluation for 90Jul01 to 91Feb25, 89Jul01 to 90Jun30, 88Oct01 to 89Jun30, 89Mar01 to 89May25, and 89Jan09 to 89Feb28
Copy of Medical Board Report of 26 February 1991
Copy of Statement of Patient concerning the findings of a medical board dated 25 March 1991
Copy of financial assistance authorization and receipt
Copy of leave and earning statement 
Copy of medical surveillance questionnaire
Copy of medical board report cover sheet finding applicant fit for duty 20 August 1991
Back side of standard form 93 31Oct91
Copy of resume

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	870403 - 870804	COG

Period of Service Under Review:

Date of Enlistment:  870805		Date of Discharge:  911113

Length of Service (years, months, days):

	Active:    04  03  09 (Does not exclude UA of 53 days)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  80

Highest Rate:  STS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)	Behavior:  3.80 (6)		OTA:  3.75 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  53 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

870805:	Applicant voluntarily agreed to extend enlistment for 24 months for Advanced Electronics Field Program.

880603:	Enlistment bonus authorized.  Applicant accepted accelerated advancement to STS3.
880627:	Applicant to unauthorized absence 0630 to 1200, 27Jun88.

910223:	Admission Diagnosis: Closed Left Tibia/Fibula fracture.

910225:	Applicant transferred to Naval Hospital Oakland, CA.
 
910226:	Discharge Diagnosis:  Closed Left Tibia/Fibula fracture.  Disposition:  Recommend conv leave for 30 days, recommend med board, limited duty for 6 months.

910226:	Medical Board Report:  Summary of diagnoses: Closed tibia/fibula fracture, left leg, Neuropraxia, left common peroneal nerve, resolving.  Boards opinion that applicant is currently not fit for full duty and it is recommended that applicant be assigned 6 months limited duty.  While on limited duty, his activities should preclude standing more than 30 minutes, walking more than one block, lifting more than 25 pounds, and repeated stair climbing.  Applicant should be assigned in the vicinity of Naval Hospital, Oakland, CA where he can obtain monthly orthopedic follow up.

910410:	Ortho Clinic: A; Doing well. P: _____ cast, RTC 4 weeks - 6 weeks.
910511:	Ortho Clinic: A: Doing well. P: Gradual weight bearing, RTC 2 wks for cast _______.

910613:	Applicant signed an understanding of responsibilities re: medical appointments, reevaluation, notify PSD Limited Duty Coordinator, etc.

910703:	Ortho Clinic: A: Doing well.  P: Continue PT - strength, ROM ankle/knee, no running or sports for 2 months.  Continue LIMDU board.  Follow up 2 mo for LIMDU re-eval.

910715:	Ortho: S: Healing left tibia/fibula fracture.  Rx: Ankle ROM and strengthening, knee strength.  

910820:	S: Follow up for limited duty for left til fib fx and left common peconed nerve palsy.  Applicant with complaints of continued weakness in left ankle and also unable to extend left 2nd toe.  P: Fit for full duty.

911031:	Applicant found qualified for release from active duty.

990302:	NDRB documentary record review Docket Number ND98-00774 conducted.  Determination:  discharge proper and equitable; relief not warranted.

Separation package missing from service record.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911113 under other than honorable conditions in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper, but inequitable (D and E) and therefore voted to upgrade the characterization to under honorable conditions (general).

The Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general).  The Board took into account the applicant’s post service accomplishments since 1991 and his honorable service until the unauthorized absence, as requested in issue 1, and voted to upgrade his discharge to under honorable conditions (general).

In the applicant’s issues 2 and 3, the Board found no evidence that the Navy mishandled the applicant’s injury.  The Board cited the applicant’s medical record and the fact that the applicant was under an orthopedics’ care and found fully fit for duty on 910820.
The Board finds no connection between the applicant’s inability to complete his check-in due to the “Navy’s mishandling of” his injury and the fact that he was UA for 53 days.

In the applicant’s issue 4, there is no evidence that the applicant ever spoke to anyone about the alleged violations of his “limited medical duty restrictions.”  There is no documentation in the applicant’s service record, nor did he present any evidence to the Board at his personal appearance hearing that his limited duty was being violated.  In addition, the Board does not find this as a justifiable reason for being UA for 53 days.  No relief will be granted based on this issue. 

In the applicant’s issue 5, there is no supporting documentation either in the applicant’s medical/service record or presented to the Board at the personal appearance hearing to show that he suffered from depression or physical pain due to his limited duty assignment.  No relief will be granted based on this issue. 

In the applicant’s issue 6, the applicant states “the recommendation for a Special Court-Martial for an unauthorized absence of less than 60 days was utterly disproportionate to the offense.”  The Board disagrees with this statement.  The applicant could have received a punitive bad conduct discharge for merely 30 days of UA, in accordance with the Manual for Courts-Martial.  The Commanding Officer has the absolute right to prefer charges to court martial at his own discretion, just as the applicant is given the right to be administratively separated instead of going to a court martial.  The applicant elected separation in lieu of trial by court martial and at that point, he admits guilt and the mitigating circumstances are no longer applicable.  Therefore, the Board finds no basis for relief.

The applicant’s issue 7 is a non decisional issue for the Board.  The applicant was afforded his proper rights and elected an administrative separation in lieu of a trial by court martial.

In the applicant’s issue 8, the Board found that the applicant was found fit for full duty on 20 Aug 91 by a Medical Board.  The Board disagrees with the applicant’s statement that “since my discharge resulted ultimately from my medical condition, I should have been honorably discharged for medical reasons.”  The applicant was discharged for his unauthorized absence of 53 days in lieu of trial by court martial, not for his fractured Tibia/Fibula.  No relief will be granted based on this issue. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023